State of U.P. Vs. Shyam Lal Sharma
[1971] INSC 191 (12 August 1971)
RAY, A.N.
RAY, A.N.
SIKRI, S.M. (CJ) PALEKAR, D.G.
CITATION: 1971 AIR 2151 1972 SCR (1) 184 1972
SCC (2) 514
ACT:
Civil service-Compulsory Retirement-Order
when can be said to be by way of Punishment
HEADNOTE:
The Order compulsorily retiring the
respondent, a head constable, made reference to a letter,, dated March 16, 1962
of the Police Head Quarters approving a proposal by the Superintendent of
Police, dated February 14, 1962, for the compulsory retirement of the
respondent. The proposal had mentioned that the respondent was "considered
to be a bad lot incorrigible and no longer useful". The respondent filed a
suit for a declaration that the Order was illegal since the procedure under Art.
311 of the Constitution and r. 55 of the Civil Service Regulations was not
followed.
The trial court dismissed the suit. In appeal
the Civil and Sessions Judge came to the conclusion that the proposal dated
February 14, 1962, formed the necessary adjunct to the order leading to
compulsory retirement and passed a decree in favour of the respondent. The High
Court confirmed the decree.
Allowing the appeal,
HELD: In ascertaining whether an order of
compulsory retirement is one of punishment it has to be seen whether in the
order there is any element of charge or stigma or imputation or any implication
of misbehaviour or incapacity against the officer concerned. Where the
authorities can make an order of compulsory retirement for any reason and no
reason is mentioned in the order it cannot be predicated that the order of
compulsory retirement has an inherent stigma in it. Unless it is established
from the order itself that a charge or imputation against the officer is made
the condition of the exercise of the power or that by the order the officer is
losing benefits already earned, the order cannot be said to be one for
dismissal or removal or in the nature of penalty or punishment. [189 B; 192 D,
E] In the present case the order of compulsory retirement does not suffer from
any such vice nor can it be, on the facts found, said to have been passed on
account of malice. The High Court fell into the error of holding that the order
contained stigma by going behind the order of retirement and also by misreading
the proposal dated February 14, 1962 in the manner not warranted by the letter
itself containing a mere proposal for compulsory retirement. Only the proposal
was sent for approval. The order cannot be stated to sustain the plea of
punishment by extracting opinionsexpressed by the authorities in regard to the
officer in the past. [192 F; 190 C-D] I. N. Saksena v. State of Madhya Pradesh,
[1967] 2 S.C.R.
496, followed.
185 Shyam Lal v. State of U.P..[1966] 1
S.C.R. 26, State of Bombay v. Saubhagchand M. Doshi, [1958] S.C.R. 571, Dalip
Singh v. State of Punjab, [1961] 1 S.C.R. 88 and State of Uttar Pradesh v.
Madan Mohan Nagar, [1967] 2 S.C.R. 333, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1203 of 1969 Appeal by special leave from the judgment and order dated
September 20, 1968 of the Allahabad High Court in Second Appeal No 1791 of 1967
L. M.Singhvi and O. P. Rana, for the appellant.
R. N. Sharma, N. N. Sharma and C. P. Lal for
the respondent The Judgment of the Court was delivered by RAY, J.-This appeal
is by special leave against the judgment dated 20 September 1968 of the High
Court of Judicature at Allahabad dismissing the appeal preferred by the State
of Uttar Pradesh against the decree passed by the Court of Civil and Sessions
Judge in favour of the plaintiffrespondent declaring that the order of removal
of the plaintiff-respondent from service is void and is illegal and the
plaintiff-respondent should be deemed to be still in service.
The only question for consideration in this
appeal is whether the order of compulsory retirement of the plaintiffrespondent
was one of punishment.
The High Court came to the conclusion that
the order of compulsory retirement dated 28 March, 1962 and the letter dated 16
March, 1962 referred to in the order of compulsory retirement and the
memorandum dated 14 February, 1962 referred to in the, letter dated 16 March.
1962 when read together established that the order of compulsory retirement was
to punish the plaintiff-respondent.
The order dated 28 March, 1962 was as
follows:"As per orders contained in the P.H.Q. letter No. IV-780-60 dated
16-3-62 the compulsory retirement of H.C./22 C.P. Shyam Lal is.
sanctioned. He is retired compulsorily
w.e.f.. 1-4-62 ...........
186 The letter dated 16 March, 1962 was as
follows:"U.P. POLICE HEAD QUARTERS, ALLAHABAD-1 No. IV-780-60, dated 16
March, 1962.
To, The Supdt. of Police, Mathura.
Subject : Compulsory retirement of Head
Constable Sri Shyam Lal Sharma of the Mathura District Police.
Reference: Your No. P-99 dated Feb. 14, 1962.
Your proposal for the compulsory retirement
of Head Constable Sri Shyam Lal Sharma is approved. He should be retired
compulsorily forthwith and granted four months leave preparatory to compulsory
retirement, if he so applied for.
Sd/M.L. Capoor, Deputy Supdt. of Police,
HDQRS. for Inspector General of Police.
The letter P. 99 dated 14 February, 1962 was
as follows:"To The Dy. Inspector Genl. of Police;
Agra Range, U.P. Camp., Agra.
Subject: Compulsory retirement of Head
Constable Shyam Lal Sharma No. 22 C.P. of the Mathura District.
Reference: P.H.Q. endorsement No. IV-56959
dated 17-1-61.
2. The above named Head Constable has put in
26 years of service and has lost his utility to the Department. He is
considered to be a bad lot incorrigible and no longer useful. I recommend his
compulsory retirement on proportionate pension w.e.f. 1-4-1962.
187
3. The Proposal for the compulsory retirement
of this Head Constable on Police Form No.
61 in duplicate together with his Ch. Roll
and the following documents is herewith sent.
P.H.Q. (IV) 1. A note containing the For n.a.
charge preferred against May be sancthe Head Constable.
tioned four 2. Memo of leave (in months leave
duplicate).
preparatory to 3. History of service (in
compulsory reduplicate).
tirement.
4. It is therefore requested that necessary
remarks may kindly be recorded on the proposal and his case be forwarded to
P.B.Q. for issuing orders for his compulsory retirement w.e.f. 1-4-1962".
The High Court held that reading the three
documents together "there cannot be any escape from holding that the order
of compulsory retirement was to punish the plaintiff and nothing else".
The High Court read the proposal dated 14 February, 1962 in this language
"recommended for compulsory retirement on proportionate pension w.e.f. 1-41962
due to the bad record of service as he is considered to be a bad lot
incorrigible and no longer useful".
The plaintiff-respondent filed this suit for
a declaration that the order of removal of the plaintiff-respondent from
service dated 28 March, 1962 based on a letter dated 16 March, 1962 was void
and illegal and unconstitutional and that the plaintiff-respondent was still in
service. The defence of the State was that the plaintiff-respondent was not
retired on the ground of misconduct, inefficiency or incapacity and, therefore,
the procedure under Article 311 and rule 55 of the Civil Service Regulations
was not required to be followed.
The court of the Munsif trying the suit dealt
with issue No.3, namely, whether the "retirement of plaintiff respondent
was due to malice and by way of punishment" 188 and answered the issue in
the negative. The court of the Munsif also held that the order was not illegal
and dismissed the suit.
The Civil and Sessions Judge in hearing the
appeal held that though the order dated 28 March, 1962 was 'to the effect that
the plaintiff-respondent was to be retired compulsorily with effect from
1-4-1962 it did not expressly mention any stigma against the
plaintiff-respondent. The order of compulsory retirement according to the Civil
and Sessions Judge was based on the letter of the Police Headquarters dated 16
March, 1962 which was an approval of the proposal made by the Superintendent of
Police by letter dated 14 February, 1962 and the proposal of the Superintendent
of Police clearly gave out that the sole basis for compulsory retirement of the
plaintiff respondent was 'his being incorrigible and having outlived his
utility to the Department'.
The Court of Civil and Sessions Judge on that
ground came to the conclusion that the order of compulsory retirement was based
on the proposal of the Superintendent of Police accepted 'in toto' by the
Police Head Quarters and therefore the proposal formed 'necessary adjunct to
the order leading to compulsory retirement. The court of Civil and Sessions
Judge passed a decree in favour of the plaintiff-respondent.
An appeal was preferred to the High Court by
the State against the judgment of the Court of Civil and Sessions Judge. The
High Court agreed with the reasoning and conclusion of the court of Civil and
Sessions Judge and dismissed the appeal.
The implication and effect of orders of
compulsory retirement came up for consideration before this Court from time to
time and reference may be made to five of these decisions. These are Shyam lal
v. State of U.P. & Anr. [1955] 1 S.C.R. 26, State of Bombay v. Saubhagehand
M. Doshi, [1958] S.C.R. 571, Dalip Singh v. The State of B Punjab, [1961] 1
S.C.R. 88, The State of Uttar Pradesh v. Madan Mohan Nagar, [1967] 2 S.C.R.
333, and I. Ar. Saksena v. State of Madha Pradesh, [1967] 2 S.C.R. 496.
189 The following propositions can be
extracted from these decisions. First, in ascertaining whether the order of
compulsory retirement is, one of punishment it has to be ascertained whether in
the order of compulsory retirement there was any element of charge or stigma or
imputation or any implication of misbehaviour or incapacity against the
officer, concerned. Secondly, the order for compulsory retirement will be indicative
of punishment or Penalty if the order will involve loss of benefits already
earned.
Thirdly, an order for compulsory retirement
on the completion of 25 years of service or an order of compulsory retirement
made in the public interest to dispense with further service will not amount to
an order for dismissal or removal as there is no element of punishment.
Fourthly, an order of compulsory retirement will not be held to be an order in
the nature of punishment or penalty on the ground that there is possibility of
loss of future prospects, namely that the officer will not get his pay till he
attains the age of superannuation, or will not get an enhanced pension for not
being allowed to remain a few years in service and being compulsorily retired.
Judged by the principles enunciated by this
Court it is apparent that the order of compulsory retirement in the present
case does not on the face of it contain any stigma or imputation or penalty .
It is not the case of the plantiff-respondent that the order of compulsory
retirement involved any loss of benefits already earned or that there was any
penalty in the nature of loss of emoluments or pension. It was contended on
behalf of the plaintiff respondent that the reasoning adopted by the court of
Civil and Sessions Judge and upheld by the High Court was correct that the
letters dated 16 March 1962 and 14 February, 1962 established in the present
case that there was stigma in these letters and the order of compulsory
retirement was based on these letters and therefore the order was one of
punishment. The letter dated 16 March, 1962 stated that "proposal for
compulsory retirement...... is approved".
This letter cannot be said to have any stigma
or imputation.
It was submitted that inasmuch as the
proposal for retirement was approved, therefore, there was approval of the
letter dated 190 14 February, 1962 and that letter was the basis of the order
of compulsory retirement.
The letter dated 14 February, 1962 was in
four paragraphs.
The concluding paragraph contained a proposal
for compulsory retirement of the plaintiff-respondent. The concluding paragraph
did not contain any stigma or imputation against the plaintiff-respondent. In
the preceding paragraph 2 the author of the letter wrote that "He is
considered to be a bad lot incorrigible and no longer useful". It was said
on behalf of the plantiff-respondernt that there was stigma in the words
"incorrigible and no longer useful" and the order of compulsory
retirement was based on that stigma. Only the proposal for compulsory
retirement was sent for approval.
The order of compulsory retirement cannot be
stated to sustain the plea of punishment by extracting opinions expressed by
the authorities in regard to the officer in the past.
This Court in Saksena's case (supra) said
"where an order requiring a Government servant to retire compulsorily
contains express words from which a stigma can be inferred, that order will
amount to removal within the meaning of Art.
31 1. But where there are no express words in
the order we cannot delve into Secretariat files to discover whether some kind
of stigma can be inferred on such research". In Saksena's case (supra) the
order was as follows "In pursuance of the orders contained in General
Administration Department memorandum No. 433-258-1 (iii)/63 dated the 28th
February 1963, the State Government have decided to retire you with effect from
the afternoon of the 31st December, 1963".
The relevant rule in Saksena's case (supra)
conferred power on the Government to retire an officer after he attains the age
of 55 years on three months' notice without assigning any reason. The rule
stated that the power would normally be exercised to weed out unsuitable
employees after they have attained the age of 55 years.
It was contended on behalf of Saksena that
the order of retirement cast a stigma. This Court in Saksena's 191 case
referred to two earlier decisions of this Court to illustrate as to whether the
order of retirement itself cast a stigma. One Was Jagdish Mitter v. Union of
India, A.I.R.
1964 S.C. 449 where the order was in these
terms "Shri Jagdish Mitter, a temporary 2nd Division Clerk of this office
having been found undesirable to be retained in Government service is hereby
served with a month's notice of discharge with effect from November 1,
1949".
The other was the decision in State of Uttar
Pradesh v. M. M. Nagar (supra) where the order of retirement was as follows :"I
am directed to say that the Governor has been pleased to order in the public
interest under Article 465A and Note (1) thereof of the Civil Service
Regulations, the compulsory retirement with effect from September 1, 1960 of
Sri Madan Mohan Nagar, Director State Museum, Lucknow who completed 52 years of
age on July 1, 1960 and 28 years and 3 months of qualifying service on 31-5-1960
as he has outlived his utility".
In Nagar's case (supra) this Court held that
the words respondent had outlived his utility" occurring in the order
attached stigma to the officer In Saksena's case (supra) the order was that the
Government decided to retire the officer with effect from 31 December 1963 and
as the order did not contain any words from which stigma could be inferred it
could not be said that the order of compulsory retirement amounted to an order
of removal in Saksena's case (supra).
This Court in Shyam Lal's case (supra) held
that the mere fact that the Government servant was compulsorily retired before
he reached the age of superannuation could not in itself be a stigma.
The ruling in Saksena's case (supra) is also
that where there are no words in the order of compulsory retirement which throw
any stigma there should not be any inquiry into Government files to discover
whether any remark amounting to stigma could be found in the files. The reason
is that it the order of compulsory retirement which alone is for examination.
If the order 192 itself does not contain any imputation or charge against the
officer the fact that ,considerations of misconduct or misbehaviour weighed
with the Government in coming to its conclusion whether any action could be
taken under rule 278 does not amount to any imputation or charge against the
officer". This was the view expressed by this Court in Dalip Singh's case
(supra). In that case the relevant rule was as follows "The State reserves
to itself the right to retire any of its employees on pension on political or
on other reasons." Where the authorities can make an order of compulsory
retirement for any reason and no reason is mentioned in the order it cannot be
predicated that the order of compulsory retirement has an inherent stigma in
the order. In the present case, the fact found is that the order of compulsory
retirement could not be said to be on account of malice.
Unless it is established from the order of
compulsory retirement itself that a charge or imputation against the officer is
made the condition of the exercise of that power or that by the order the
officer is losing benefits already earned, the order of retirement cannot be
said to be one for dismissal or removal in the nature of penalty or punishment.
In the present case, the order of compulsory
retirement does not suffer from any such vice.
The High Court fell into the error of holding
that the order of compulsory retirement in the present case contained stigma by
going behind the order of retirement and also by misreading the letter dated 14
February, 1962 in the manner not warranted by the letter itself containing a
mere proposal for compulsory retirement.
For these reasons, the appeal is allowed.
There will be no order as to costs. The parties will pay and bear their own
costs.
K. B.N. Appeal allowed.
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